Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1386 OF 2020
IN
STAMP NO. 4665 of 2020
Shrikant Venkatesh Sawant ]
Age years, Occupation: Housewife, ]
Indian Inhabitant of Mumbai, residing at ]
Room No.458, Building No.32, Colaba ]
Transit Camp, Colaba, Mumbai 400 005 ]
and Building No.3A, Gala No.707, ]
M.H.B. Colony, Gorai Transit Camp, ]
Borivali, Mumbai. ].. Plaintiff
V/s
1. Building Repair & Reconstruction Board ]
Through Deputy Chief Officer (T & C), ]
MBRR&B, MHADA Building, Bandra (East),]
Mumbai 400 051. ]
2. Executive Engineer, ]
A Divisional Office Mumbai Building Repair]
and Reconstruction, Colaba, Cuffe Parade, ]
Colaba, Mumbai – 400 005. ]
3. Mallayya Papaya Dasari, ]
Age-Not know, Occupation-Not known ]
Indian Inhabitant of Mumbai, last known ]
address residing at Room No.458, ]
Building No.32, Colaba Transit Camp, ]
Colaba, Mumbai 400 005. ]..Defendants.
Appearance:
Advocate Mr. Kudalkar for the plaintiff.
Advocate Mr. Chandrashekhar for MHADA/for defendant Nos.1 and 2.
None present for the defendant No.3.
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CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 20th OCTOBER, 2020.
ORAL ORDER
The plaintiff, by this Notice of Motion, seeks two temporary
reliefs. First, that the defendants be directed to allot a permanent
alternate accommodation in the reconstructed building in lieu of the
suit premises i.e. Room No.9, 24 Kamathipura, 9th Lane, Mumbai
400008. The second relief asked is that pending the final disposal of the
suit, defendants be restrained from dispossessing the plaintiff from the
transit accommodation i.e. Gala No.707, Building No.3A, Gorai Transit
Camp, Borivali, Mumbai. The plaintiff has also asked the relief in the
suit that the plaintiff be declared as the lawful occupant of the suit
premises. The first relief is the substantive relief asked in the suit and is
also dependent on further proof of plaintiff’s entitlement to be declared
as the lawful occupant of the suit premises. Therefore, the first relief
cannot be entertained or granted as the temporary relief.
2. Thus, the subject matter to be considered for the purpose of
this Notice of Motion is the transit accommodation and the question to
be
prima facie considered is, as to whether the plaintiff proves her
lawful possession over the transit accommodation and would he be
entitled to protect his possession over it, till decision of the suit.
3. The case of the plaintiff in brief is that he was in possession
and occupation of No.458, Building No.32, Colaba Transit Camp,
Colaba, Mumbai 400 005. and he was shifted to Transit Gala No.707 in
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Building No.3A at New M.H.B. Colony, Gorai Transit Camp, Borivali,
Mumbai. The defendant No.3 was the original tenant and occupier of
Room No. 9, 24 Kamathipura, 9th Lane, Mumbai. The original premises
and the transit accommodations are owned by the Maharashtra Housing
and Area Development Authority (MHADA) and the defendant No.1 is
the Board constituted under MHADA and the defendant No.2 is its
responsible officer. MHADA is the owner and landlord of those
premises.
4. The defendant No.1 issued Vacation Notice dated
11.01.1996 and the defendant No.2 issued similar notice on 23.09.2005
to the defendant No.3/the original tenant to vacate Room No.9, 24
Kamathipura, 9th Lane, Mumbai as the building was in dilapidated
condition and was not suitable for residence. He was directed to shift
to the temporary alternate accommodation at Gala No.458, Building
No.32, Colaba Transit Camp, Mumbai. The defendant No.3 accordingly
shifted to that Transit accommodation.
5. It is the case of the plaintiff that the defendant No.3 was in
dire need of money and therefore, he decided to assign his rights over
Room No.9, 24 Kamathipura, 9th Lane, Mumbai 400008 to the plaintiff
and accordingly, he sold, transferred and assigned all his rights in that
premises to the plaintiff by executing Affidavit-cum-declaration, General
Power of Attorney and Sale Deed. The plaintiff was paying the rent in
respect of old and transit accommodation and the rent receipts are
issued jointly in the name of the plaintiff and the defendant No.3.
6. The defendants passed an order dated 27.12.2019
declaring that the building in which the transit accommodation of the
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defendant No.3 was situated was dilapidated condition and is no more
suitable for residence. They therefore, ordered to vacate that premises
and shift to another transit accommodation i.e. Gala No.707, Building
No.3A, MHB Colony, Gorai Transit Camp, Borivali Mumbai.
Accordingly, the plaintiff shifted to that transit accommodation.
7. Subsequently, in the month of August 2020, the defendant
No.2 visited the suit premises i.e. Gala No.707, Building No.3A at Gorai
Transit Camp, Borivali and threatened the plaintiff that he shall vacate
that premises failing which he will be evicted by using force. The
plaintiff and his family members are in settled peaceful possession of
that premises and the defendants cannot evict them from that premises
without giving the alternative transit accommodation. The defendants
again in the month of September 2020 gave such threats and therefore,
the plaintiff has come with the suit asked the protection from summary
eviction of him by high handed action by the defendant Nos.1 and 2.
8. The defendant Nos.1 and 2 have resisted this Notice of
Motion by filing reply contending therein that the suit is no
maintainable and deserves to be dismissed in limine as it is file by
suppressing of material fact and since the plaintiff has not come with
clean hands, he will not be entitled to get the relief as prayed in the suit
and in this Notice of Motion. It is their case that the transit
accommodation at Gala No.707, Building No.3A in MHB Colony Transit
Camp was allotted to the defendant No.3 temporarily in lieu of his
original tenanted premises i.e. Room No.9, 24 Kamathipura, 9th Lane,
Mumbai which went under redevelopment. The plaintiff is stranger to
the original tenanted premises and also to the transit accommodation
allotted to the defendant No.3. The plaintiff cannot acquire valid title
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or right to these premises by virtue of unregistered Affidavit-cum-
declaration, Power of Attorney or Sale Deed. The defendant No.3 was
not allowed to create any third party rights in respect of the transit
accommodation allotted to him which is belonged to the defendant
No.1. All the correspondence pertaining to the old premises and the
transit accommodations made by the defendant Nos.1 and 2 is made to
the defendant No.3 and not to the plaintiff. Thus, the plaintiff has no
existing right either in the old premises or in the transit accommodation
of the defendant No.3 and thus, he cannot claim any relief against the
defendant Nos.1 and 2.
9. The plaintiff has denied all the aforesaid allegations of the
defendants by filing rejoinder affidavit.
10. The defendant No.3 has not appeared in the suit. He has
neither admitted the case of the plaintiff nor disputed the defence taken
by the defendant Nos.1 and 2. He has chosen to remain silent. This is
probably because the suit is yet not registered and suit summons is not
served on him. Even the plaintiff has not filed affidavit of service of
Notice of Motion to the defendant No.3. In the Notice of Motion,
though the temporarily relief is asked against all the defendants, it is
submitted that the plaintiff is asking the reliefs primarily against the
defendant Nos.1 and 2. Thus, this Notice of Motion is to be decided
without prejudice to the rights of the defendant No.3.
11. In view of rival contentions of the parties and the
submissions made on their behalf, the following points arise for my
determination with my findings thereon for the reasons recorded
thereunder;
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S.No. POINTS FINDINGS
1 Do the plaintiff prove the
prima-facie case ?
No
2 Whether balance of convenience lies in their
favour ? No
3 Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
No
4 What Order? As per Final Order.
R E A S O N S
Point No.1 to 3:
12. Mr. Suraj Kudalkar, the learned advocate for the plaintiff
submits that the plaintiff has produced ample documents on record to
prove his
prima facie possession and those documents are not disputed
by the defendants. The plaintiff has filed rejoinder affidavit wherein, he
contends that the tenancy in respect of tenanted premises can validly be
transferred on the basis of Affidavit executed by the tenant. He further
contends that had he filed an application before the defendants for
transferring the permanent alternate accommodation in lieu of the old
tenanted premises in his name, the defendants could have accepted the
transfer fee and transferred the said premises in his name. Thus, the
plaintiff has proved her
prima facie case that he is the lawful occupant
in the transit accommodation i.e. Gala No.707, Building No.3A, which
is duly recognized by the defendants. Therefore the plaintiff is entitled
for the interim relief as prayed for.
13. On the other hand, Mr. Siddharth Chandrashekhar, the
learned advocate for the defendants submits that the plaintiff is not the
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lawful tenant of the defendants in the old premises and the transit
accommodation which was allotted to the defendant No.3 temporarily
for his occupation on certain conditions. He is not entitled to transfer or
assign that premises or even the old premises without sanction of the
defendants. Any such transfer does not bind the defendants. The
defendants have every right to evict any third person occupying the
transit accommodation illegally under any such transfer. The defendants
do not recognize the plaintiff as the lawful occupier of the old premises
or the transit accommodation. Therefore, he cannot ask for interim
protection to retain his possession over the transit accommodation Gala
No.707, Building No.3A.
14. Having considered the rival submissions, it would be clear
from the rival pleadings of the parties that the plaintiff is claiming his
lawful possession over the transit accommodation Gala No.707,
Building No.3A as he has purchased the original tenanted premises from
the defendant No.3 and on that basis, he had acquired possession of
Room No.458, Building No.32, Colaba Transit Camp, Mumbai on his
behalf. The letter of the defendants dated 21.12.2019 makes it clear
that they had ordered the plaintiff to vacate Gala No.458, Building
No.32 at Colaba Transit Camp, Mumbai and in lieu of it, he was ordered
to shift to Gala No.707, Building No.3A in New MHB Colony, Gorai
Transit Camp, Borivali, Mumbai. Thus, the plaintiff is having possession
over the transit accommodation for and on behalf of original tenant
Mallayya Papaya Dasari and not on his own behalf. The transit
accommodation was provided for temporary period and the occupier
was ordered to pay the requisite rent and electricity charges.
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15. Under this backdrop, when the plaintiff comes before the
Court to ask for protection from his dispossession from Gala No.707,
Building No.3A, he has to
prima facie prove that his possession is
lawful. There is nothing to show that the plaintiff was lawfully put into
possession of that premises. Insofar as his sale deed, affidavit-cum-
declaration and power of attorney are concerned, they are grossly
insufficient to prove a valid transfer or lawful possession. A valid
transfer of immovable property can only be made by a registered
instrument. None of these documents are registered. Secondly, the
vendor i.e. the defendant No.3 shall not be competent to make such
transfer. He was admittedly a tenant in the original premises. The
plaintiff has to establish that the defendant No.3 was competent to
transfer or the transfer made by him is required to be held as legal and
valid as per any law or public policy adopted by the Government, which
the defendants are bound to follow. There is nothing to show anything
like this.
16. Merely because the plaintiff acquired possession of the
transit accommodation of Gala No.707, Building No.3A or he has paid
the dues of the defendant No.3, it
ipso facto does not confer any right
on the plaintiff to retain his possession and ask for injunction against
the defendants. The documents on record show that all the
correspondence made by the defendants pertaining to the tenanted
premises or the transit accommodation is made to the defendant No.3
or on his behalf to the plaintiff. There is some reference of the name of
the plaintiff in the correspondence to reduce the rent from Rs.3000 to
Rs.500 but the defendants have nowhere admitted that the plaintiff is
their tenant or his occupation is legal. As such, those documents do not
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come in aid of the plaintiff to prove the
prima facie case of having
lawful possession over the Gala No.707, Building No.3A.
17. Mr. Kudalkar, the learned advocate for the plaintiff has
produced a copy of the circular dated 21.05.2015 issued by the
defendants. According to him, by that circular, the defendants have
adopted policy to rehabilitate even encroachers prior to 01.04.2009 in
vacant Transit Camp accommodations. Therefore, even assuming that
the possession of plaintiff is not to be considered as lawful, still the
defendants have to rehabilitate her and they cannot summarily evict
him.
18. It is difficult to be convinced with the aforesaid submissions
because, this circular dated 21.05.2015 has itself made clear that it is
applicable to the Transit Camps at Bharat Nagar, Bandra (E), Antop Hill,
Wadala and Bandra Reclamation, Bandra (W) and not to the Transit
Camp at Gorai Road, Borivali. Secondly, if at all, the plaintiff has any
remedy under any such circulars/orders, he has to pursue such remedy
before the Competent Authority and he cannot restrain the defendants
from taking any action in accordance with law. Merely because the
plaintiff has apprehension that defendants would evict his from the
transit accommodation, that
ipso facto does not give his right to restrain
the defendants from taking legal action in respect of the transit
accommodation owned by them. If he has no right to remain in a
particular premises, he has to vacate it, else he would be liable to be
evicted in accordance with law.
19. It is the basic requirement of law that when a party asks an
equitable relief, he/she is bound to disclose all relevant facts and shall
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come before the Court with clean hands. Because, any attempt to
conceal some facts or present the facts in a manner not expected by law
would ultimately expose such party when such facts are scrutinized on
the touchstone of the concept of a
prima facie case. The intentional
mixture of claim in the name of lawful occupant by the unlawful
claimant rests on self-contradictory pleas and that has resulted in failure
to prove the
prima facie case by the plaintiff. Therefore, the question of
balance of convenience and irreparable loss does not fall for
consideration.
20. To sum up, the plaintiff would not be entitled to get the
interim protection as asked in prayer clause (b) of this Notice of Motion.
I do not find such
prima facie case in favour the plaintiff. For the
reasons already recorded, the points of the balance of convenience and
irreparable loss need not be addressed. The defendants are free to take
appropriate action in accordance with law against the plaintiff, if he is
found to be in an unauthorized possession of the transit accommodation
i.e. Gala No.707, Building No.3A at MHB Colony Transit Camp, Borivali,
Mumbai.
21. In the result, the point Nos. 1 to 3 are answered
accordingly and the following order is passed in answer to point No.4.
O R D E R
1. The Notice of Motion No.1386 of 2020 is hereby
dismissed.
2. On request by the plaintiff, the interim protection
already granted shall continued for a period of one
month from the date of this order.
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3. The Notice of Motion No. 1386 of 2020 stands
disposed of accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 20/10/2020. Gr. Bombay.
Dictated on : 20/10/2020
Transcribed on : 20/10/2020
Signed on : 20/10/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/10/2020 At 2.15 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
20/10/2020
Judgment/Order signed by P.O. on 20/10/2020
Judgment/Order uploaded on 21/10/2020
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